Hercules Powder Co. v. Rich

• Decision Date: 01 December 1924
• Docket Number: No. 6494.,6494.
• Citation: 3 F.2d 12
• Parties: HERCULES POWDER CO. v. RICH.
• Court: U.S. Court of Appeals — Eighth Circuit

3 F.2d 12 (1924)

HERCULES POWDER CO. v. RICH.^*

No. 6494.

Circuit Court of Appeals, Eighth Circuit.

December 1, 1924.

E. Howard Morphy, of St. Paul, Minn., and William R. Robertson, of Joplin, Mo. (Gould G. Rheuby, of Wilmington, Del., and John M. Bradford and Carl W. Cummins, both of St. Paul, Minn., on the brief), for plaintiff in error.

G. O. Patterson, of Clarksville, Ark., and R. W. Robins, of Conway, Ark. (Patterson & Ragon, of Clarksville, Ark., and J. H. Thompson, of Little Rock, Ark., on the brief), for defendant in error.

Before STONE and KENYON, Circuit Judges, and KENNEDY, District Judge.

KENYON, Circuit Judge.

Parties will be designated as in the trial court. Defendant is a corporation organized under the laws of the state of Delaware, and engaged in selling powder, dynamite, explosives, and fuses to be used in exploding blasts. In 1920 it had a branch office in Little Rock, Ark., where sales were made. The plaintiff in 1920 was a subcontractor, engaged in the construction of a highway in Faulkner county, Ark., and in the prosecution of said work used dynamite for the purpose of blowing stumps from the right of way of the prospective highway. In the month of August, 1920, he purchased from defendant at its office in Little Rock, Ark., certain fuses for the purpose of exploding dynamite, and claims that one Bailey in charge of said office at Little Rock sold him a fuse which he guaranteed to be a slow burning safety fuse with a burning speed not to exceed 1 foot per minute. Plaintiff claims that at the time he purchased said fuse he explained his needs and requirements to defendant, and that defendant was fully advised of the purposes for which the fuse was to be used. He purchased 4,000 feet of fuse, which was shipped to him. This fuse had been manufactured by the Ensign-Bickford Company of Simsbury, Conn. Plaintiff used the same in his work of blowing stumps from the right of way of the highway, and claims that in the belief that it was a slow burning fuse of the kind he had ordered from the defendant he put in a charge of dynamite for the purpose of blasting out a stump in the right of way, and connected with said dynamite a cap and piece of said fuse about 20 inches in length, and in the usual and proper manner set fire to the same in the belief that he would have time to gain a place of safety before the explosion of the dynamite. Plaintiff claims, however, that said fuse, instead of burning 1 foot to each minute, burned instantaneously, and caused the dynamite to explode before plaintiff had an opportunity to reach a place of safety; that this resulted in serious injury to plaintiff, permanently destroying his sight, bruising and lacerating his head, face, and body, and that he was permanently incapacitated for doing work or labor of any kind.

Plaintiff bases his right to recover upon the alleged fact that the fuse sent him was not the kind ordered by him and agreed by plaintiff's agent to be sent. Defendant, in addition to denying the claims of plaintiff as to warranty, alleges that the injuries suffered by plaintiff were directly contributed to by his own recklessness and negligence in the manner and method of using the material employed in and about the work. The court required plaintiff to elect whether he would rely upon the cause of action pleaded arising out of a tort, or the one alleging breach of warranty. Election was made to rely upon breach of warranty.

At the close of plaintiff's testimony defendant requested the court to direct a verdict in favor of the defendant, which motion was denied. At the close of all the testimony defendant moved the court to direct the jury to return a verdict in its favor, which was likewise denied. At the proper time defendant requested certain instructions which appear in the record, which were refused, and exceptions to the action of the court in refusing the same were preserved. The jury returned a verdict for plaintiff for $30,000.

The questions actually involved arise from the refusal of the court to charge the jury that, under the law and evidence of the case, the verdict should be for the defendant, and in refusing the request of the defendant to charge the jury as to contributory negligence.

It is the contention of defendant that the alleged conversation between Bailey, agent of defendant, and plaintiff, even if established, is not sufficient to constitute a warranty; further, that there is no evidence showing any authority of Bailey to make the alleged warranty; that there is no evidence of any defect existing at the time the defendant sold the fuse, and therefore no liability on the part of the defendant, and further that the court erred in refusing the request of the defendant to define what constituted negligence on the part of the plaintiff in the alleged preparation and use of the fuse, and in the manner of using the material at the time of the accident.

I.

Are the words claimed to be used by Bailey sufficient to create a warranty? Plaintiff testifies to his conversation with Bailey:

"I asked the kind of fuse that I would get. He said he would give me safety fuse. I told him that I couldn't use anything except slow-burning safety fuse with a minute per foot. He says, `That is what I will ship,' and left the impression that —

"The Court: Don't state your impression. Just state what he said. A. He says, `That is what I will ship.' So he sold me 500 caps, blasting caps, 500 electric globe caps that is to be used with a powder with which we connect the wire, regular `B' caps; that is, the blasting caps supposed to be used by fuse of various kinds and touching off by fire. I told Mr. Bailey that I couldn't use anything except the slow-burning fuse of a burning speed of a minute per foot. He says, `That is what you will get.'"

Defendant claims that these words were mere expressions of opinion, not in the nature of affirmation of facts, and were at best merely descriptive.

Mechem on Sales, vol. 2, § 1235, defines a warranty as follows: "Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by the seller during the treaty of sale and as a part of the contract, designed by him to induce the action of the purchaser and actually to some extent at least, relied upon by the latter in making the purchase, will be deemed to be a warranty."

Tiedeman on Sales, 283, § 193, announces the doctrine: "But the better opinion is that any positive statement of a material fact which is made with the intention of influencing the buyer to buy, and the truth of which is relied upon by the buyer, will constitute a warranty, whether the seller intended to warrant the goods or not. The intention to warrant is conclusively presumed from his effort to influence the buyer's actions by a statement of fact."

Also 24 R. C. L. § 437: "To constitute an express warranty the term `warrant' need not be used; no technical set of words are required, and it may be inferred from the affirmation of a fact which induces the purchase and on which the buyer relies and on which the seller intended that he should so do, but it has been said that the words used must be tantamount to a warranty, and not dubious or equivocal."

The rule is well stated in Conkling v. Standard Oil Co., 138 Iowa, 596, 603, 116 N. W. 822, 825, as follows: "A warranty may rest in parol, and no particular form of words is necessary thereto. A warranty arises when there is a distinct assertion or affirmation of fact — which is relied upon — respecting the quality of the goods, or the adaptability thereof to the purpose for which they are desired." See, also, J. I. Case Threshing-Mach. Co. v. McKinnon, 82 Minn. 75, 84 N. W. 646; Cornish v. Friedman, 94 Ark. 282, 126 S. W. 1079; Warren v. Granger, 151 Ark. 453, 236 S. W. 607; Shippen v. Bowen, 122 U. S. 575, 7 S. Ct. 1283, 30 L. Ed. 1172; Briggs et al. v. Rumely Co., 96 Iowa, 202, 64 N. W. 784.

While if the statement relied on as a warranty could not as a matter of law be considered as such it would be the duty of the court to so declare, generally the question of whether parol statements amount to a warranty is a question of fact for the jury. Hughes v. Funston, 23 Iowa, 257; 24 R. C. L. 438; Shippen v. Bowen, 122 U. S. 575, 7 Sup. Ct. 1283, 30 L. Ed. 1172; Hobart v. Young, 63 Vt. 363, 21 A. 612, 12 L. R. A. 693; Titus v. Poole, 145 N. Y. 414, 40 N. E. 228.

If the jury believed the testimony of plaintiff, they were warranted in finding that the party selling the fuse — one Bailey — was fully cognizant of the purpose for which it was intended; that plaintiff told him he could not use anything except a fuse of a burning speed of a minute per foot, and that Bailey assured him that was what would be shipped; that such statement was not one merely of an opinion, but was a distinct affirmation of a fact and intended to influence the sale; and that plaintiff relied on such affirmation in making the purchase. Hence that the words, if used, constituted a warranty.

Defendant in its argument claims that plaintiff did not rely on the alleged statement of Bailey as a basis of his purchase and that there was no warranty. The record shows that plaintiff was asked the question directly whether he relied on the statements of Bailey as to the burning speed and character of the fuse in his purchase of it and use of it, and replied that he did.

The court stated the law to the jury on this question as follows: "You are instructed that in the purchase of an article any affirmation of a material fact as a fact by the vendor and relied upon as such by the purchaser will constitute a warranty whether the vendor intended to warrant or not, but, if the vendor in making the statement of a material fact does so merely by way of commendation or merely to express his opinion, belief, judgment or estimate, such a statement does not constitute a warranty." This left to the jury the question of whether the...